DRAFTING ENFORCEABLE ORDERS - FAMILY LAW 101 State Bar of Texas - KELLY AUSLEY-FLORES, Austin - GoransonBain Ausley
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DRAFTING ENFORCEABLE ORDERS
Presented by:
KELLY AUSLEY-FLORES, Austin
GoransonBain Ausley, PLLC
Written by:
KRISTIANA BUTLER, Austin
GoransonBain Ausley, PLLC
State Bar of Texas
FAMILY LAW 101
August 11, 2019
San Antonio
CHAPTER 8KELLY AUSLEY-FLORES
GORANSONBAIN AUSLEY, PLLC
ATTORNEY AT LAW
3307 Northland Drive, Suite 420
Austin, Texas 78731
(512) 454-8791
(512) 454-9091 Facsimile
kflores@gbafamilylaw.com
www.gbafamilylaw.com
EDUCATION
Texas Tech University, B.B.A. in 1987, cum laude Texas Tech
School of Law, J.D., 1995, cum laude
PROFESSIONAL ASSOCIATIONS AND HONORS
Board Certified by Texas Board of Legal Specialization, Family Law, since 2000 Fellow,
American Academy of Matrimonial Lawyers
Member, Texas Academy of Family Law Specialists
Named Texas Super Lawyers® - Rising Stars® Edition (Texas Monthly, 2004 and 2005) Named Best
Lawyers’ Austin Family Law Lawyer (2012 through the present)
Member, Collaborative Law Institute of Texas
Member, International Academy of Collaborative Professionals Member,
State Bar of Texas (Family Law Section)
Served on Family Law Council 2012-2017 Member,
College of the State Bar of Texas
Member, Austin Bar Association (Family Law Section) Member, Texas
Bar Foundation, 2004 through the present
Member, Pro Bono College of the State Bar of Texas, 1999 through the present Recipient, 1998 and
1999 Pro Bono Award, Volunteer Legal Services of Central Texas Recipient, 2017 Lawyer of the Year
(Family Law, Best Lawyers of America) Recipient, Travis County Women’s Lawyer Association, Pro
Bono Award, May 2018.
CAREER PROFILE
Practiced family law with Goranson Bain Ausley, PLLC, since December 2017.
Practiced family law with Ausley, Algert, Robertson & Flores, L.L.P. since August 1995 and became a
partner in December 2001.
Trained in Collaborative Law and trained as a family law mediator.
Volunteer, Volunteer Legal Services of Central Texas since 1996 as a mentor and lawyer.
Volunteer, Texas Advocacy Project previously Women’s Advocacy Project since 2004 as a lawyer.
Obtained certification as a specialist in the area of family law through the Texas Board of Legal
Specialization (December 2000).
PERSONAL
Born February 23, 1965, in Lubbock, Texas and raised in Austin. Married to Joe
Flores - two children.
Member, First United Methodist Church, Austin.AUTHOR AND LECTURER
“Closing the File,” Advanced Family Law Seminar - Boot Camp, State Bar of Texas, August 17, 2003.
“Post Trial Basics & Closing the File,” Advanced Family Law Seminar - Boot Camp, State Bar of Texas,
August 8, 2004.
“Effective Use of ADR in Family Law Cases,” 2005 Poverty Law Conference, Texas Lawyers Care, March
30 - April 1, 2005.
“Closing the Friendly and Unfriendly File,” Advanced Family Law Drafting Course, State Bar of Texas,
December 8-9, 2005.
“Traveling Light: Collaborative Law Without Paralegals or Assistants,” Collaborative Law Spring
Conference 2008, State Bar of Texas, February 28-29, 2008.
“Collaborative Law,” Alternative Dispute Resolution Course, University of Texas Law School, Professor
Cynthia Bryant, March 6th, 2008.
“Child Support (What Do Judges Do in Various Counties) Above & Below the Guidelines, the High Income
Earners (Death of the Obligor),” Marriage Dissolution Institute, State Bar of Texas and Family Law Section, April
17-18, 2008.
“Closing the File,” Summer School - State Bar College, State Bar of Texas, July 17-19, 2008.
“Closing Documents Other than QDROs,” Advanced Family Law Drafting Course, State
Bar of Texas, December 4-5, 2008.
“Putting Agreements on Paper,” Collaborative Law Course 2010, State Bar of Texas and Collaborative Law
Institute of Texas, March 4-5, 2010.
“Closing the File,” Advanced Family Law Drafting Course, State Bar of Texas, December 9-10, 2010.
“We’re Done! (Or are we?) - Closing the File,” Advanced Family Law Drafting Course, State Bar of Texas,
December 5-6, 2013.
“Closing the File 101,” Marriage Dissolution 101 Course, State Bar of Texas, April 23,
2014.
“Closing the File 101 – The Long Good-Bye,” Marriage Dissolution 101 Course, State Bar
of Texas, April 8, 2015.
“Proving Significant Impairment,” Advanced Family Law Seminar, State Bar of Texas, August 1-4, 2016.
LECTURER
“Creative Discovery,” Family Law Essentials, Family Law Council, Nacogdoches, Texas, June 4, 2004.
“Post Trial Basics & Closing a File,” State Bar Convention - Boot Camp, June 25, 2004. “Closing Out Your
File,” Williamson County Family Law Seminar, October 29, 2004. “How to Study for and Pass the Board
Certification Exam,” Advanced Family Law Course,
State Bar of Texas, August 10, 2005.
“Trends in Family Law,” 2009 Statewide Assistant Attorneys General Conference, Austin, Texas, July 10,
2009.
“Changes in SAPCR Issues and Trends for the Future,” 35th Annual Advanced Family Law Course, State
Bar of Texas, August 3-6, 2009.
“Collaborative Law,” Travis County Family Law Section Luncheon, January 6, 2010. “The Paradigm
Shift,” Nuts & Bolts of the Collaborative Process Course, State Bar of
Texas and the Collaborative Law Institute of Texas, March 3, 2010.“Characterization & Tracing: An Overview,” Advanced Family Law Course, State Bar of Texas, August 4,
2011.
“Know When to Hold Them, Know When to Fold Them: Settlement Agreements, Rule 11 Agreements,
Informal Settlement Agreements and Mediated Settlement Agreements,” Author: Jimmy Vaught, Marriage
Dissolution, State Bar of Texas, April 19, 2013.
“Know When to Hold ‘Em, Know When to Fold ‘Em, Accepting and Firing Clients,” The Austin Bar Family
Law Section Spring CLE, May 13, 2016.
“Parental Alienation – Analyzing/Reassessing the Problems and Solutions,” Advanced Family Law
Seminar, State Bar of Texas, August 7-10, 2017.
“Navigating Your Family Law Matter When Someone with a Personality Disorder Is Involved,” Advanced
Family Law Seminar, State Bar of Texas, August 13-16, 2018.
“Breaking the Log Jam in Your Case,” 12th Annual Course Collaborative Law: Avoid Breaking Bad When
Breaking Up, State Bar of Texas, March 7-8, 2019.
“Property Case Update,” Marriage Dissolution, State Bar of Texas, April 25-26, 2019.
“40-Hour Mediation Training,” AAML, June 23-26, 2019.
COURSE DIRECTOR/PLANNING COMMITTEES:
Planning Committee – Collaborative Law Course 2010 Planning
Committee – Advanced Family Law Course
2010 Course Director – Family Law Boot Camp 2010
Planning Committee and Course Director – Marriage Dissolution 101 Seminar,
April 2013 Planning Committee – Advanced Drafting Course 2013
Planning Committee – Marriage Dissolution (2017, 2018, 2019)
Mediation Committee – AAML 2019KRISTIANA BUTLER
GORANSON BAIN AUSLEY, PLLC
3307 Northland Drive, Suite 420
Austin, Texas 78731
(512) 454-8791, fax (512) 454-9091
kbutler@gbafamilylaw.com
EDUCATION
Texas Tech University School of Law, J.D., magna cum laude, 2013
Columbia University Graduate School of Journalism, M.S., 2006
Texas Christian University, B.S., magna cum laude, 2005
ADMITTED
State Bar of Texas 2013
AREA OF PRACTICE
Family Law
AWARDS AND PROFESSIONAL RECOGNITION
Recognized as a Rising Star by Super Lawyers – 2017, 2018, and 2019
PROFESSIONAL ACTIVITIES AND PUBLICATIONS
-CLE Speaker, “Modifications” – Victoria Family Law Essentials Seminar, 2019
-CLE Speaker, “Divorce 101” – Williamson County/WLS Presentation Series, 2018
-Co-Author, “Which Way Do We Go?” – Drafting Considerations in Jurisdiction, Advanced Drafting
2017
-Contributor, Texas Family Law Foundation’s Annotated Texas Family Code 2017
-Vice President, Women Lawyers Section, Williamson County Bar Association
-Director, Mother Attorneys Mentoring Association of Austin
-Member, College of the State Bar of Texas
-Member, Austin Bar Association, Family Law Section
-Member, State Bar of Texas, Family Law Section
-Member, Travis County Women Lawyers Association
-Member, Austin Young Lawyers Association
-Member, Williamson County Bar Association
SPECIALTY TRAINING
Basic Interdisciplinary Training, Collaborative Divorce Texas – 2019
New Ways for Families, Williamson County Bar – 2015
40-hour mediation training – 2012A special thank you to Kelly Caperton Fisher and Angie Rolong Cormier for use of their Advanced Family Law Drafting 2017 paper, “Securing the Deal.”
Drafting Enforceable Orders Chapter 8
TABLE OF CONTENTS
I. INTRODUCTION ................................................................................................................................................... 1
II. BEGIN WITH THE END IN MIND ...................................................................................................................... 1
A. Be Specific ...................................................................................................................................................... 1
B. Orders Requiring Performance ........................................................................................................................ 2
C. Attach Documents as Exhibits......................................................................................................................... 2
III. AWARDING PROPERTY IN DECREES ............................................................................................................. 2
A. Furniture and Personal Effects ........................................................................................................................ 2
B. Financial accounts and money......................................................................................................................... 3
C. Planes, Trains, and Automobiles ..................................................................................................................... 4
D. Life Insurance Policies .................................................................................................................................... 4
E. Employee and Retirement Benefits ................................................................................................................. 5
1. Benefits Awarded All to One Spouse ...................................................................................................... 5
2. Benefits Divided Between the Parties ..................................................................................................... 5
3. Pre-Qualifying the QDRO ....................................................................................................................... 6
F. Award of Real Property ................................................................................................................................... 6
G. Orders for Jointly-Owned Property ................................................................................................................. 7
H. Confirmation of Separate Property.................................................................................................................. 7
IV. REAL ESTATE CONVEYANCES ........................................................................................................................ 7
A. Special Warranty Deed .................................................................................................................................... 7
B. Owelty Deed of Partition ................................................................................................................................. 7
C. Deed of Trust to Secure Assumption............................................................................................................... 7
D. Deed Without Warranty .................................................................................................................................. 8
E. Real Estate Lien Note ...................................................................................................................................... 8
F. Release of Judgment ........................................................................................................................................ 8
G. Deed of Trust ................................................................................................................................................... 8
H. Drafting Real Estate Documents ..................................................................................................................... 8
1. Obtain the Legal Description ................................................................................................................... 8
2. Use the State Bar Forms .......................................................................................................................... 8
3. Record the Deed ...................................................................................................................................... 8
V. MONEY JUDGMENTS ......................................................................................................................................... 8
A. Avoiding the Necessity of Judgment ............................................................................................................... 8
B. Drafting Judgment Language .......................................................................................................................... 9
VI. ENFORCEMENT PROCEDURES ........................................................................................................................ 9
A. Filing Suit to Enforce ...................................................................................................................................... 9
B. Pleadings ......................................................................................................................................................... 9
C. Clarification, Not Modification ..................................................................................................................... 10
D. Remedies ....................................................................................................................................................... 10
E. The "Turnover Statute".................................................................................................................................. 10
F. Attorney's Fees and Costs.............................................................................................................................. 10
G. Filing Deadlines ............................................................................................................................................ 10
VII. CONCLUSION - CLOSING THE FILE .............................................................................................................. 10
iDrafting Enforceable Orders Chapter 8
DRAFTING ENFORCEABLE property that is rightfully his or hers. Draft your
documents with enforcement in mind, or you may leave
ORDERS the Court without the means or ability to assist you in
the event the opposing party defaults on his or her
I. INTRODUCTION obligations under the agreement or Court's ruling.
After months or even years of working toward a
Enforceability is key!
resolution for your client, you are finally near the end.
Maybe the mediator on your case is hurrying you
A. Be Specific
through your review of the final version of the
A decree must clearly identify and divide property
agreement, or you realize the judge is not addressing all
and set out each party’s duties and obligations related to
of the issues in your Proposed Disposition of Issues. As
the division of property in clear, specific, and
a young lawyer, it can be intimidating to push mediators
unambiguous terms. The parties must be able to
or judges, but this is often a make-or-break time for your
determine from the decree the obligations they have
case. Your ultimate goal is a clear order that explicitly
under its terms. Ex parte Slavin, 412 S.W.2d 43 (Tex.
lays out the details parties need to know to follow the
1967).
rules, and, if one party does not follow the rules, the
With proper drafting, the decree will be
order needs to be clear enough to allow for relief
enforceable by contempt (with certain exceptions).
through enforcement.
Regardless of whether the decree reflects an agreed
Cases are concluded by only three means: non-
property settlement or a judge's ruling at the conclusion
suiting the case after the parties reconcile or drop the
of trial on the merits, the provisions of an agreed decree
case for other reasons; settlement agreements—whether
are just as enforceable as a decree which memorializes
negotiated informally, through the collaborative law
the outcome of trial.
process, or through mediation; or the issues are put
When considering remedies, it is important to note
before a judge or jury to decide in final trial.
that orders for the payment of debts are not enforceable
Regardless of the method for determining the ultimate
by contempt. Article I, Section 18, of the Texas
outcome, your excellent negotiating skills and/or
Constitution provides that there are no debtors’ prisons
diligent trial preparation will be forgotten if your client
in Texas. Ex parte Yates, 387 S.W.2d 377 (Tex. 1965).
does not end up with the assets awarded to him or her,
Additionally, a person cannot be held in contempt for
or if the opposing party does not perform duties laid out
failing to perform an act that he is not capable of
in the order and your client is harmed by that failure.
performing. Ex parte Gonzales, 414 S.W.2d 656 (Tex.
Even good lawyers make mistakes in mediation.
1967). Even if you do not have contempt as an
For a cautionary tale, consider Jonjak v. Griffith, No. 03-
available remedy, however, you still may have
18-00118-CV, 2019 WL 1576157 (Tex. App.—Austin
contractual remedies to enforce the terms of an agreed
April 12, 2019) (mem. op.). In this case, the mediated
decree. Robbins v. Robbins, 601 S.W.2d 90 (Tex. Civ.
settlement agreement awarded a percentage or a dollar
App.—Houston [1st Dist.] 1980, no writ).
amount from husband’s 401(k) and failed to award wife
An invaluable tool for young lawyers, especially
interest, dividends, gains, or losses from the date of the
solo practitioners, is a formbook. The Texas Family Law
MSA. The decree granted gains and losses on the
Practice Manual contains guideline language and
amount awarded to wife, but the Court of Appeals later
numerous forms for an attorney to use in preparing final
amended the decree to remove the award of gains and
orders and documents necessary to divide the
losses.
community estate or confirm a party's separate property.
This article is designed to give you basic tips for
Provisions within formbooks are intended as guidelines
drafting enforceable orders, and it will focus on divorce
and are no substitute for specificity in drafting to fit each
decrees. Retirement, complicated property issues, and
client's particular case; however, the language within the
child-related issues will be addressed in depth by several
Texas Family Law Practice Manual is so widely used
other speakers at the Advanced Family Law Course.
that many mediators will include language that the
drafting of specific clauses should reflect the Texas
II. BEGIN WITH THE END IN MIND Family Law Practice Manual, which is something for
Maybe you have mediated successfully, or you
young lawyers to consider when building a practice
litigated and have a judge’s ruling. To your client, it may
library.
seem like the hard work is done, but careful drafting is
Assets should be described in clear detail that
often the most important part of the process. When a
provides a third party (banker, broker, title company
client hears, “you are hereby divorced and the marriage
representative, auto dealer, etc.) who reads the
is dissolved,” most clients believe the case is finished.
document sufficient proof on its face that your client
If the divorce decree, transfer documents, or
was awarded an asset. The following specific
security instruments are not prepared and executed
information should be included in each decree: (1) Full
properly, your client may not receive the money or the
and complete legal descriptions of real property and oil
1Drafting Enforceable Orders Chapter 8
and gas or mineral interests; (2) vehicle identification for release and delivery of the property. If
numbers for automobiles, farm equipment, boats, documents or property are to be delivered to
watercraft, recreational vehicles, and the like; (3) names the opposing spouse, the decree must state the
of financial institutions, the last few digits of account specific location (name of recipient, street
numbers, types of accounts, and any identifying names address, city, and state) where delivery is to be
(if not held in the names of the parties) for checking, made.
savings, and brokerage accounts; (4) certificate
numbers, accurate security names, and types of The decree should state any other requirements or
securities (common stock, preferred stock, bond, etc.) conditions related to the transfer of the documents or
for securities such as stocks and bonds not held in property (such as which party is responsible for moving
brokerage accounts; (5) proper legal names of the expenses, copying charges, etc.).
carriers and accurate policy numbers (the last few digits
only) for all life insurance policies. C. Attach Documents as Exhibits
While the information provided in the decree You can avoid ambiguous orders and conflicts
should be detailed enough to provide clarify for third- between your decree and a closing document if you
party providers, it is important to consider that decrees attach a copy of the unexecuted closing document to the
are available to the public (unless in a case that is decree and make it a part of the decree by reference.
sealed), and we have the obligation to keep a client’s Occasionally, a decree that states terms for
sensitive data safe. Provide enough information to payment of a secured money judgment conflicts with the
effectuate the transfer without revealing too much of terms as set out in the real estate lien note that is
your client’s sensitive information. prepared to effect the terms of the decree. By attaching
a copy of the note as it is to be signed by the maker, and
B. Orders Requiring Performance referring to the terms of that note rather than reciting the
The best practice for ensuring that a task is terms in the body of the decree, you can avoid a conflict
completed by an opposing party is to require the task between the two documents.
completion prior to entry of the decree. It is almost Attaching the specific documents and ordering a
always easier to get a party to do something before the party to sign them "in the form attached to this decree as
decree is entered than it is afterward. In situations where Exhibit [x]" provides you with the remedy of
performance prior to execution of the decree is not enforcement by contempt in the event the opposing
feasible or impossible, decrees should include specific party refuses to sign a note, deed, or similar instrument.
details regarding dates on or by which documents must Including the ancillary documents as a part of the
be signed or property must be delivered to the opposing decree and requiring that they be signed as a package
spouse. Keep a checklist for each file that lists the acts deal provides a more efficient closing timetable for the
remaining to be done, so you can follow the closing file and lessens the chances that some important act or
requirements to completion or be made aware document will not be performed timely.
immediately if an enforcement issue arises. Orders
related to performance should include the following III. AWARDING PROPERTY IN DECREES
points: The Final Decree of Divorce is the most important
document to divide property in a divorce suit. Below
(1) Signing Documents: If the order pertains to are some drafting suggestions that apply to the typical
the signing of documents, the decree should categories of assets that most often comprise parties’
state the date on which the document must be community estates. These suggestions are offered to
signed. It is often helpful to add the location help you draft decrees that can be enforced by contempt,
and time at which the documents should be if necessary; or, at the very least, to help your drafting
signed, especially if a party is ordered to become as clear, specific, and unambiguous as possible.
appear at an attorney’s office to execute a
document before a notary. A. Furniture and Personal Effects
If a date certain cannot be determined, then the Almost every divorce decree contains the
decree should state that the document will be following provisions in the sections which specify the
signed "within [x] days from the date this assets awarded to each party:
Decree is signed by the Judge of this Court").
(2) Release or Delivery of Personalty: If the order "All household furniture, furnishings,
pertains to the release or delivery of personal fixtures, goods, appliances, antiques,
property, such as furniture, the decree should artworks, and equipment in the possession of
state the date on and preferably a window of or subject to the sole control of
time in which the property must be delivered Petitioner/Respondent."
or should state specific notice requirements
2Drafting Enforceable Orders Chapter 8
"All clothing, jewelry, and other personal "PETITIONER is ORDERED to release to
effects in the possession of or subject to the RESPONDENT all of those items listed on
sole control of Petitioner/Respondent." Exhibit 'A' ("Schedule of Household Goods
and Personal Effects Awarded to
Is this language specific and unambiguous enough to be Respondent"), which exhibit is incorporated
sure your client will receive all of the things awarded? into this decree by reference and made a part
Yes, if the parties have already divided their household of it for all purposes. RESPONDENT shall
goods and personal effects to their satisfaction, or the give at least forty-eight (48) hours' notice to
Court has stated its orders in these exact terms and there PETITIONER of the date and time he will
will be no further opportunity for a spouse to take take possession of the items awarded to him."
possession of items in the possession of the other
spouse. When drafting these clauses, consider your client's
If, however, Petitioner continues to have emotional state, the level of animosity or friendliness
possession of Respondent's record collection and high between the parties, and the “hot-button issues.”
school yearbooks, and he assumes they will be returned, Anticipate potential problems and address them in the
then this Court order has just divested him of those decree, rather than attempt to deal with damage control
items. Any items that remain in Petitioner's or enforcement after the decree has been signed. If the
possession, but that are awarded to Respondent, must be opposing party has exhibited tendencies toward
described specifically in the decree or in an exhibit that procrastination, you may want to include a protective
is incorporated by reference into the decree. clause so that your client will not have to safeguard,
You will encounter this problem frequently in move, dust, or otherwise deal with the former spouse's
seemingly amicable settlement agreements. It simply Star Wars figurines for the next two decades, such as:
may not occur to the parties that they will have a
disagreement over pots and pans, until the day "In the event RESPONDENT does not take
Respondent shows up at Petitioner's residence expecting possession of the items awarded to him within
to take possession of his grandfather's mint condition 30 days from the date this decree is signed by
jazz albums, only to find that Petitioner sold the lot for the Judge of this Court, then RESPONDENT
$2.00 at a garage sale. Now you, as the attorney who forfeits his ownership of these items and they
drafted his divorce decree, get an earful about it. shall become the sole and separate property of
If your client truly wants the grand piano, but he is PETITIONER."
living in an efficiency apartment until the divorce is
final, then describe the grand piano in the decree and It is uncertain whether or not this provision would be
award it to Respondent. Recommend to your client that enforceable, however, so use it with caution. The
the parties set a specific date and time (or ask the Court inclusion of such a condition could be the incentive
to order it) that Respondent will be expected to appear necessary to encourage a procrastinator to take care of
at Petitioner's residence to take possession of the matters sooner rather than later.
household goods and personal effects awarded to him,
and then state that in language similar to the following: B. Financial accounts and money
Decrees should specify which accounts in financial
"PETITIONER is ORDERED to release to institutions are awarded to each party. Many decrees
RESPONDENT between the hours of 3:00 contain the following blanket statement awarding
and 5:00 o'clock p.m. on Saturday, December money and accounts to a spouse:
14, 2019, all of those items listed on Exhibit
'A' ("Schedule of Household Goods and "Any and all sums of cash in the possession of
Personal Effects Awarded to Respondent"), the Petitioner or subject to her sole control,
which is incorporated into this decree by including money and other assets on deposit,
reference and made a part of it for all together with accrued but unpaid interest, in
purposes. RESPONDENT shall be solely banks, savings institutions, or other financial
responsible for any expenses related to the institutions, which accounts stand in the
packing and moving of the items listed on Petitioner's name or from which the Petitioner
Exhibit 'A.'" has the right to withdraw funds or which are
subject to the Petitioner's sole control."
If the parties cannot schedule the date and time of the
property exchange when the decree is signed or the Is this language sufficient and specific enough to assure
Judge pronounces the orders, specify (or ask the Judge your client that she will receive the accounts awarded to
to specify) specific notice requirements that both parties her? Possibly so, if your client always maintained her
must follow, such as: own accounts without the name of the other party
3Drafting Enforceable Orders Chapter 8
appearing as joint owner or signatory on the account, or they continue to owe money on a vehicle. In this
in a case in which the parties closed any joint accounts instance, you have nothing for the opposing spouse to
during their separation and opened new accounts solely "sign over," and you must use a Power of Attorney to
in each party's separate name. Even in those events, Transfer a Motor Vehicle. The power of attorney must
however, if you can state the specific financial state the opposing party’s name exactly as it appears on
institution, type of account, and account number, such the title, and the make, model, year, and vehicle
detail is strongly preferred. Consider drafting decree identification number also must be identical to the title
provisions as follows: information. The decree should order the opposing
spouse to sign the power of attorney on or by a specific
“The following sums of cash in the possession date. Consider attaching a copy of the power of
of the Petitioner or subject to her sole control, attorney to the decree as an exhibit. Later, when the
including money and other assets on deposit, lien has been fully paid and clear title is issued, the client
together with accrued but unpaid interest, in who was awarded the vehicle can present the signed
the following banks, savings institutions, or power of attorney and apply for a new title in his or her
other financial institutions, or other financial sole name. The specific award of prepaid insurance
institutions: Bank of America Checking and service contracts could be very valuable if the
Account No. ending in x1234, held in the parties' auto insurance premium was paid annually or
name of Petitioner.” semi-annually or if they purchased an extended
warranty when they purchased the vehicle.
It is a good idea to have your client check with each The award of a vehicle or similar asset should be
financial institution to determine whether or not the addressed in the decree as follows: "The 2019 Ford
institution has its own set of forms or other releases Explorer, Vehicle Identification Number
required to transfer a joint account into the sole name of AB123456XYZ, together with all prepaid insurance,
one spouse or to close a joint account and divide the keys, title documents, and warranties and service
proceeds. Many brokerage firms, for example, do contracts."
require such transfer forms. If you request these in If the vehicle is not encumbered, or if the opposing
advance, you can make signing the forms a part of the spouse is ordered to pay the debt encumbering the
closing, along with signing the decree and other vehicle, the award language stated above should also
documents, which is especially advisable if you include the following phrase: ". . . free and clear of all
anticipate the opposing party being obstructive. If the liens and encumbrances on this vehicle." In the
institution does not have a specific form, a general form, "Division of Debts and Liabilities" section of the decree,
a “Letter of Authority” stating the specific request may include a specific ordering provision that sets out the
be used. Most individual retirement accounts (“IRAs”) opposing party's obligation for this debt. If the vehicle
can be awarded successfully under this provision; is awarded to a paid along with its debt, the award
however, it is especially important with IRAs that the language stated above should include: ". . . together
financial institution's forms also are executed, including with all debt secured by said vehicle."
the change-of-beneficiary forms.
Listing accounts by financial institution and D. Life Insurance Policies
number also protects your client in the event the other Decrees often include the following language in
party has not disclosed all of the assets within that connection with the award of life insurance policies:
party's control. If you prepare your decree with the
sweeping generalization that Respondent is awarded all "All life insurance policies insuring the life of
money on accounts in banks, held in Respondent's sole Respondent, together with all cash surrender
name, or subject to his sole control, then you have just value and all other incidences of ownership of
rewarded Respondent for his cleverness in hiding such policies."
money in an undisclosed bank account.
Is this language sufficient to effect the award of life
C. Planes, Trains, and Automobiles insurance policy? In this instance, probably so, yet this
Most divorces include an award of a motor vehicle language is not sufficient if there are certain other
of some sort. When drafting decrees, you must review requirements or conditions related to a party's life
the title documents pertaining to the vehicle or similar insurance coverage.
asset awarded to your client. In the event of a dispute For example, the party who will be obligated for
over title, it is important that the description in your child support payments to the other spouse may be
decree is identical to the description on the title, ordered to maintain life insurance that will pay the child
including the manner in which the parties' names are set support obligations in the event that party dies while he
out (First Middle Last or First M. Last, for example). or she continues to have a child support obligation.
Often, the parties do not have a negotiable title because Similar requirements are also typical to secure
4Drafting Enforceable Orders Chapter 8
contractual alimony obligations. When such a E. Employee and Retirement Benefits
requirement exists, the life insurance award should While the issue of Qualified Domestic Relations
contain the following qualifying language: “subject to Orders (QDROs) will not be addressed in depth here, the
Respondent's obligation to maintain life insurance in an division of employee and retirement benefits must be
amount not less than $[x] to protect his child support addressed in the decree. When dealing with retirement
obligations ordered in this decree” or “in an amount division that requires QDROs, it is always best to enter
sufficient to protect his child support obligations the QDRO simultaneously with the decree. The Court
ordered in this decree,” whichever selection is loses plenary power after 30 days, and the QDRO needs
appropriate. to be entered before that time, or extra steps are required
If a party is awarded a life insurance policy which to get the QDRO entered. Do yourself a favor and
insures the opposing party, the decree should state consider adopting a policy that you will not enter a
clearly who is to be responsible for paying the policy decree without a completed QDRO.
premiums. Written notice must be given to the carrier
that ownership of the policy is being transferred and the 1. Benefits Awarded All to One Spouse
attorney must take care to see that all forms required by If the employee spouse is to receive all of his or her
the carrier are executed. As with the transfer of employee or retirement benefits, then a Qualified
brokerage accounts, each life insurance company likely Domestic Relations Order is not required, and it is
has its own transfer forms or releases that must be recommended the following language be used:
executed by the owner to transfer ownership of the
policy. "The following sums, whether matured,
Under Texas Family Code §9.301, the designation unmatured, accrued or unaccrued, vested or
of a spouse as primary beneficiary of a life insurance otherwise, together with all increases thereof,
policy becomes null and void upon divorce. In many the proceeds therefrom, and any other rights
cases, the decree requires the party paying child support related to any profit-sharing plan, retirement
(the "obligor") designate the other party as beneficiary plan, Keogh plan, pension plan, employee
of life insurance so the child support obligation will be stock option plan, 401(k) plan, employee
paid if the obligor dies while child support is still savings plan, accrued unpaid bonuses,
payable under the order. Or Petitioner may be awarded disability plan, or other benefits existing by
one of Respondent's life insurance policies simply as a reason of [name of employee spouse]'s past,
part of the division of property, so that Petitioner present, or future employment, including but
becomes owner and beneficiary of the life insurance not limited to following: a. 100% of the
policy. In all of these instances, the decree must [exact name of plan] held in the name of
designate the insured's former spouse as the beneficiary [employee spouse] from [his/her]
or designate the insured's former spouse to receive employment with [exact name of company]."
proceeds in trust for, on behalf of, or for the benefit of a
child of the parties. 2. Benefits Divided Between the Parties
To be safe, you should include language ordering If the non-employee spouse is awarded a share of
that the insured re-designate the former spouse as the the employee spouse's employee or retirement benefits,
primary beneficiary of the life insurance policy after the then the Qualified Domestic Relations Order should set
date of divorce. Simply leaving the prior designation out the particulars of the division of these benefits, and
of that beneficiary without reaffirming it may be the decree should contain a provision in the list of assets
insufficient. This is especially important if the insured awarded to the non-employee spouse similar to the
remarries and a subsequent spouse claims the life following:
insurance proceeds should be paid solely to him or her.
It is best practice for the attorney to follow up, "A portion of [name of employee spouse]'s
preferably within the 30-day period following the date retirement benefits in the [exact name of plan]
of divorce, to make certain that the life insurance arising out of [name of employee spouse]'s
designations have been made properly and that all employment with [exact name of company],
confirmations and authorizations required of the insured as more particularly defined in that certain
have been given to the insurance carrier. It may be Qualified Domestic Relations Order
helpful to also include a reminder to the client to re- ("QDRO") signed by the Court concurrently
designate their former spouse as beneficiary in your with this decree."
closing letter at the conclusion of your representation.
In addition to stating that the non-employee spouse is
awarded a portion of the employee spouse's employee
or retirement benefits, do not forget to confirm that the
5Drafting Enforceable Orders Chapter 8
employee spouse is awarded the remainder. Include a By taking these planning steps, you may avoid
provision similar to the following: additional trips to the courthouse to submit amended
QDROs long after all other aspects of the case have been
"SAVE AND EXCEPT that portion of [name concluded. Another word of advice: While the buck
of employee spouse]'s benefits in the [exact stops with you as the attorney of record, consider
name of plan] awarded to [name of non- outsourcing the QDROs to attorneys who primarily
employee spouse] in this decree, the focus on QDROs.
remainder of all sums in [exact name of plan],
whether matured, unmatured, accrued or F. Award of Real Property
unaccrued, vested or otherwise, together with Real property awards require high levels of
all increases thereof, the proceeds therefrom, specificity. Early in the case, as your client gathers
and any other rights related to any profit- information for you, you should insist that the client
sharing plan, retirement plan, Keogh plan, give you a copy of the real estate documents
pension plan, employee stock option plan, (particularly the Deed of Trust) for any piece of real
401(k) plan, employee savings plan, accrued property owned by the parties or claimed by your client
unpaid bonuses, disability plan, or other as separate property. The legal description in the decree
benefits existing by reason of [name of should match that shown on those real estate documents,
employee spouse]'s past, present, or future as this consistency helps to avoid confusion when filed
employment with [name of employer], and of record. In many counties, you can obtain deeds
more particularly defined in that certain online, which is what I advise, whether or not your client
Qualified Domestic Relations Order signed by provides you documents. Many times the documents
the Court concurrently with this decree." provided by clients are not the most recent.
The decree should state a specific date on which the
If the decree states the QDRO is entered concurrently opposing party must sign any real estate documents
with the decree, be sure it is entered concurrently. related to real property awarded to your client, so that
Another benefit of completing the QDRO and entering you will have contempt remedies available to you in the
it at the time of the decree is that you can ensure that the event the opposing party does not sign and return the
language of the QDRO is exactly reflected in the decree, required transfer documents. This is another example
and vice versa. of when attaching the documents in the form in which
they are to be signed as an exhibit can be helpful.
3. Pre-Qualifying the QDRO From time to time, you will be involved in cases in
Always try to have your QDROs pre-qualified. which the opposing party cannot be located or
Determine the name and address of the Plan disappears shortly after the divorce is granted, making
Administrator where QDROs for the plan are to be the follow-up work impossible to complete. In the
submitted and then contact that person well in advance event you cannot locate the person who must sign a
of trial or mediation. Ask for the plan description and Special Warranty Deed to transfer the property interest
any published rules or guidelines for drafting QDROs to your client, you may file a certified copy of the
applicable to that particular plan. Most companies decree, in lieu of a deed, in the real property records.
have their own "model" QDROs that will make your Although the filing fee may be more expensive, it is well
drafting job much easier. Use of the model developed worth the cost to protect your client's interest and your
specifically for that plan usually will guarantee own. This also will work for the transfer of other
acceptance and approval of the QDRO if followed to the assets, such as vehicles, if the opposing spouse cannot
letter. Use the guidelines or model and prepare a rough be located or refuses to sign the title transfer. In such
draft of the proposed QDRO as soon as possible after instances, if you anticipate that there will be a problem
trial or a settlement agreement is reached, and submit in obtaining a signed deed, the following phrase should
the rough draft to the Plan Administrator. Ask for a be inserted in the decree: "This decree shall serve as a
written opinion as to whether or not the Plan muniment of title to transfer ownership of all property
Administrator anticipates that your draft will be awarded to either party in this decree."
approved once it becomes an official Court order. In order to utilize the decree in this way for the
Make sure you understand what the Plan Administrator transfer of real property, the full and complete legal
requires—most require a certified copy of the QDRO, description of the real property must be included in the
but some also require a certified copy of the entire decree; and for transfer of a vehicle, the complete
decree. The regulations of some plans specify that the identification numbers, year, and model of the vehicle.
QDRO provisions must be a part of the decree itself,
rather than prepared in a separate document, and the
drafter certainly needs to know that before the decree is
completed and presented to the Court.
6Drafting Enforceable Orders Chapter 8
G. Orders for Jointly-Owned Property IV. REAL ESTATE CONVEYANCES
Occasionally, the parties will agree or the Court When drafting decrees and transfer instruments for
will order that husband and wife continue to own certain the award of real property, the following documents are
property jointly. Such orders usually involve real often required:
property that is ordered to be sold (or that the parties
agree should be sold) and the proceeds divided in the A. Special Warranty Deed
future. Remember, these two people are divorcing; The most used real estate document in family law
therefore, they probably cannot be counted on to agree cases is a Special Warranty Deed. The "special" part of
100% of the time. The attorneys should anticipate the transaction is that the grantor is limiting his warranty
potential problems and make certain the decree contains to persons who would claim title through the grantor,
specific provisions that give the parties a blueprint for hence the magic phrase: "I do hereby bind myself, my
resolving disputes as they arise. The decree should heirs, executors, administrators, and assigns to
prescribe the terms and conditions under which the WARRANT AND FOREVER DEFEND all and
property is to be sold, who has the authority to accept a singular the said premises unto the said Grantee, her
contract and/or make a counter-offer, and how the heirs and assigns, against every person whomsoever
listing and sales prices are to be set. The decree also lawfully claiming or to claim the same or any part
should provide some sort of "tie-breaker" language, thereof, by, through, or under me, but not otherwise."
such as a "duty-to-mediate" clause, in the event the The deed must contain this phrase in order to be a
parties are unable to agree on any of these issues. "Special" Warranty Deed.
Terms such as "net proceeds" and "reasonable The decree should contain ordering language
expenses" should be defined specifically, such that a which requires the grantor to sign, have acknowledged,
closing officer or other third party can determine the and return the Special Warranty Deed on a specific date.
intent of the decree.
The decree also should contain orders specifying B. Owelty Deed of Partition
who will pay the mortgage payments in the interim, who Clients who wish to be awarded a property in full
will pay the utility bills, who is responsible for can seek to purchase the opposing party's interest by
maintaining the property, and, if applicable, which party refinancing through a third party. The third-party
is entitled to the use and possession of the property until lender will insist upon a lien against the entirety of the
sold. property, and not merely a lien against a one-half
Finally, the decree should set out with specificity interest.
any calculations relevant to the division of net proceeds,
in such sufficient detail that a closing officer can discern C. Deed of Trust to Secure Assumption
the amount that is to be awarded to each party. The A Deed of Trust to Secure Assumption essentially
issue of potential capital gains taxes related to the sale protects a party who is not awarded the property but
of jointly-owned property also should be addressed so remains on the mortgage. The award of all interest in a
that the closing officer and a party's tax return preparer piece of real property to the client's spouse may not
can provide the proper reporting information to the release the client from potential liability for the
Internal Revenue Service. mortgage on that property. While the terms of the
divorce decree are binding on the two parties involved,
H. Confirmation of Separate Property they are not binding on the lender. If the spouse who is
If separate property exists, and it usually does, a awarded real property defaults on the mortgage or other
section of the decree should be devoted to the debt instrument, your client still can be held liable for
identification of each party's separate property, together the debt.
with a finding that the property is the sole and separate Your client can be protected from liability by
property of the owner. Failure to include separate having the spouse receiving the property agree to
property could be a loose end that creates additional refinance the mortgage within a certain period of time,
problems or future litigation for the parties, if a spouse thus eliminating the note on which your client is liable
attempts to show that there are undivided assets still and replacing it with an obligation imposed solely upon
subject to the Court's jurisdiction. the other spouse. If the lender does agree to refinance
The decree should contain ordering language to the obligation, it likely will require the Owelty Deed of
require a spouse to sign a quitclaim deed in favor of the Partition discussed above; however, this solution is not
spouse whose real estate has been confirmed as sole and often available, particularly if the party who receives the
separate property. real property cannot qualify for a home mortgage loan
in his or her sole name.
If refinancing the debt is not a possibility, then you
should not allow your client to sign a Special Warranty
Deed unless the spouse receiving the property also is to
7Drafting Enforceable Orders Chapter 8
sign a Deed of Trust to Secure Assumption. A Deed of H. Drafting Real Estate Documents
Trust to Secure Assumption, provided it is properly filed 1. Obtain the Legal Description
in the deed records of the county in which the property For some reason, one of the most difficult things to
is located, requires the lender to notify the beneficiary obtain from a client is a legal description for real
of any foreclosure proceedings and allows the property. Clients rarely understand the attorney's
beneficiary to foreclose on the property in the event he insistence upon a copy of the actual deed, rather than
or she must re-assume the debt. acceptance of the client's rendition of the legal
description. To draft a real estate instrument, you must
D. Deed Without Warranty have the full and complete legal description of the
A deed without warranty is used to convey only the property, including metes and bounds descriptions, if
grantor's right, title, and interest in the real property applicable.
described in the deed, but not the real property itself.
This instrument is used in the situation where a spouse 2. Use the State Bar Forms
owned separate real property prior to marriage or The forms set out in the Texas Family Law Practice
acquired separate real property during the marriage by Manual and the Texas Real Estate Forms Manual
gift, devise, or descent. Although the spouse who owns provide reliable and accurate forms, which are
separate real property has title to that property solely in periodically supplemented to make certain the forms
his/her name, a title company may refuse to close a sale comply with current statutes.
of that property without the former spouse's signature, if
the title company learns that the real estate was held 3. Record the Deed
during marriage. A deed without warranty will help You always should file the deed in the real property
your client avoid such problems, as it confirms that the records of the county in which the property is located.
former spouse has no claim for reimbursement or other Prompt recording of a deed is important for the reason
interest in the property. that a subsequent purchaser of the property for value
without notice of a prior conveyance acquires title to the
E. Real Estate Lien Note property over a person claiming ownership under an
The real estate lien note secures a debt. If your unrecorded deed. Tex. Prop. Code 13.001(a).
client is to receive funds in exchange for an interest in Likewise your client's lien may be void if not
other assets, you want to obtain adequate security to properly recorded so as to give notice to subsequent lien
ensure that the obligation to your client is fulfilled. holders of the prior lien.
The Real Estate Lien Note should recite the terms Remember, if you simply cannot obtain the signed
of the obligation and should attach the Note as an exhibit real estate documents necessary to effect the
to the decree. Of course, the decree should contain conveyance of the property to your client, you may
ordering language that requires the maker to sign the record a certified copy of the Final Decree of Divorce if
note on a specific date. it contains the proper legal description.
F. Release of Judgment V. MONEY JUDGMENTS
A Release of Judgment is a legal document that One party may be awarded money in exchange for
shows that one spouse has been paid all that he or she is his/her community interest in real property, in a closely-
owed, based upon the original judgment against the held business, or in other assets of the community estate.
other spouse. Once your client has paid the debt, he or Because your client may be relinquishing all interest in
she will want to have the lien removed from their a home, family business, or retirement benefits
property so that there is no longer a cloud on the title. accumulated over the course of the marriage, in
That way your client is free to sell, or otherwise transfer, exchange for a cash payment, you want to do everything
the property. possible to insure that your client actually will receive
what was awarded or promised. Careful drafting can
G. Deed of Trust give you the tools to execute successfully on a
This document goes hand-in-hand with the Real judgment, rather than just setting the foundation for a
Estate Lien Note, and secures the obligation set out in subsequent suit to secure a judgment.
the note. The Deed of Trust does not convey title to
real property, but it allows the trustee named in the Deed A. Avoiding the Necessity of Judgment
of Trust to sell the property pledged as security, if the Whenever possible, try to make certain that all acts
maker of the note defaults on his or her obligations required by the settlement agreement or ordered by the
under the note. Court are completed at the same time you present the
Final Decree of Divorce to the Judge for signature. For
example: (1) Have all cash payments due and payable
on or before the date the decree is presented to the Court.
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